'Privacy' by decree

NOWHERE DOES THE CONSTITUTION guarantee the right to privacy. The word "privacy" isn't even mentioned in the text. But if all you had to go by was the obsessive interest in the subject whenever there is a Supreme Court vacancy, you might imagine that privacy is the very bedrock of American constitutional law.

Few legal cows today are more sacred. A judicial nominee who referred dismissively to the "so-called right to privacy" or insisted that courts should not "discern such an abstraction in the Constitution [and] arbitrarily elevate it over other constitutional rights," would stand no chance of winning confirmation. That is why John Roberts, who wrote those words as a Reagan administration lawyer in 1981, smoothly disavowed them during his confirmation hearings in September. It is why Samuel Alito's nomination to the court was no sooner announced than his most important Senate ally -- Judiciary Committee Chairman Arlen Specter -- called a press conference to say that the nominee had assured him that "there is a right to privacy in the Constitution" and that Griswold v. Connecticut was "good law."

Does the Constitution prohibit states from banning the sale of birth-control pills or other contraceptives?

Griswold was the 1965 case in which Justice William O. Douglas, writing for a 7-2 majority, discovered "zones of privacy" lurking in the "penumbras, formed by emanations" from the Bill of Rights. On the strength of that gaseous finding, the court struck down a Connecticut law banning the sale and use of contraceptives. The "privacy surrounding the marriage relationship," Douglas wrote, was one of those "penumbral rights" -- not in the Constitution, but constitutional nonetheless -- that lawmakers had no power to infringe.

In 1972, the court decided that this newly minted right to contraception wasn't connected to marriage, after all. "Whatever the rights of the individual to access contraceptives may be," Justice William Brennan wrote in Eisenstadt v. Baird, a Massachusetts case, "the rights must be the same for the unmarried and the married alike."

A year later, Roe v. Wade expanded the "right of personal privacy" to encompass abortion. In a 17,000-word opinion, Justice Harry Blackmun surveyed the history of abortion from the ancient Persians, Greeks, and Romans to modern times, detouring along the way to hold forth on the Hippocratic Oath, English common law, and the views of the American Medical Association, the American Public Health Association, and the American Bar Association.

But when the flood of rhetoric subsided and he finally got around to constitutional law, Blackmun had little more to offer than the airy penumbra privacy right that Griswold had unveiled eight years earlier. Even some liberal supporters of abortion rights were appalled by the decision's flaccid reasoning. In a withering critique, the legal scholar John Hart Ely wrote in the Yale Law Review that Roe "is not constitutional law and gives almost no sense of an obligation to try to be."

Yet Roe lives on and so does the right to privacy, which is now said to be located not only in those emanating penumbras but in the 14th Amendment's guarantee of liberty as well. In 1992, Justice Anthony Kennedy cobbled the two together, upholding Roe in a decision that rhapsodized about how the Constitution protects "the most intimate and personal choices a person may make" and how "at the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life." In Lawrence v. Texas 11 years later, Kennedy invoked that language in an opinion striking down a Texas law that made homosexual sodomy illegal. Soon after, in a decision citing Lawrence and the Supreme Court's pronouncements on privacy, the highest court in Massachusetts ruled that same-sex marriage must be permitted as a matter of state law.

From contraceptives to same-sex marriage is a distance that no one 40 years ago could have imagined the courts would travel. The thread connecting them is Griswold's judicially concocted "right to privacy" -- amorphous, free-floating, and wonderfully handy for writing judges' personal opinions into constitutional law.

"I think this is an uncommonly silly law," wrote Justice Potter Stewart, one of the two dissenters in Griswold, of Connecticut's ban on contraceptives. But it is not the job of judges "to say whether we think this law is unwise, or even asinine." A statute can be foolish and unfair without being unconstitutional. And the majority's penumbras and emanations notwithstanding, Stewart could "find no . . . general right of privacy in the Bill of Rights, in any other part of the Constitution, or in any case ever before decided by this Court."

The other dissenter was Hugo Black, a champion of freedom who saw what was coming. He too found Connecticut's contraceptives law absurd. But it is not the court's role to be "a day-to-day constitutional convention," he warned, and adopting a standard as loose as the "right to privacy" would set in motion "a great unconstitutional shift of power to the courts which . . . will be bad for the courts, and worse for the country."

Black was right. Griswold was wrongly decided, and its effects still poison American law and politics. But that is something no Supreme Court nominee is prepared to say. The last one who tried was Robert Bork.